E-Verify and the Emerging Surveillance State

September 29, 2008

If government won't do its job, is that a reason for Americans to surrender their liberty? Do you think that is a funny question? Well, it is actually what a number of activist groups are now advocating in the name of stopping illegal immigration.

The fact is, the U.S. government is not doing its job to secure the border and stop the flood of illegal aliens from rushing across it. Even though Congress has passed legislation demanding that a fence be built, the Department of Homeland Security (DHS) is dragging its feet, holding up the project. Moreover, DHS is fighting efforts in local communities to allow police to arrest illegals. There is little effort to tighten visa security, or allow law enforcement to track down and deport those who stay here past their allotted time. Those illegals caught committing crimes are still allowed to leave, only to easily and surreptitiously return at their will. The border is a sieve. There is no border control - period.

Rather than work to strengthen the borders and take steps to stop illegals from getting here in the first place, many now seek "internal enforcement" rather than the "rule of law." In other words, take action after leaving the barn door open.

The answer, say some very powerful anti-immigration forces, is to put the burden of control on American businesses. Jobs, they say, are the draw to illegals, so business should be the first line of defense. The answer, we are told, is simply to get tough with business and stop the ability of illegals to get a job. Such a plan, while appealing to desperate Americans, can have dire consequences if a nation desires to remain free.

Chief among the schemes to "get tough" with business is the universal enforcement of something called the E-Verify System. It is the brainchild of the Department of Homeland Security and is an electronic employment verification (EEV) program. Essentially, E-Verify uses the Social Security databases to verify Social Security Numbers to determine if someone is a US citizen. Employers are to simply enter in the applicants Social Security Number to verify they are an American citizen (of legal status) and therefore eligible for employment.

The Immigration Reform and Control Act of 1986 made it illegal for employers to "knowingly" employ unauthorized workers, and E-Verify (then known as "Basic Pilot") grew out of the requirement for work-eligibility verification. Since its inception the program has been voluntary for all businesses. However, that's about to change.

In 2007, after the dramatic defeat of the illegal immigration amnesty bills, Homeland Security Secretary Michael Chertoff announced several changes to the E-Verify System. The agency will now require more than 200,000 federal contractors to use E-Verify, an increase of more than 1,076 percent over the 17,000 employers registered in 2007 (with only about half actually using) E-Verify. The system will use an "enhanced photograph capability" that will allow employers to check photographs in E-Verify databases. DHS will expand the number of databases E-Verify checks to include visa and passport databases; and the agency is asking states to "voluntarily" allow DHS access to their motor vehicle databases. DHS will require employers to fire employees if they were unable to resolve "no match" discrepancies within 90 days. If the employers do not terminate the workers' employment, the business would face fines of $11,000 or more. DHS also will raise fines against employers by 25 percent and increasingly use criminal action against employers, as opposed to administrative action.

With those changes, E-Verify is now being sold as the atom bomb in the war on illegal immigration. Described as "the most effective tool to protect vulnerable American workers from unscrupulous businesses that hire illegal foreign workers to displace American workers or depress wages." Sounds great - of course all of this confidence in the E-Verify System's ability to stop illegal immigration is celebrated before most businesses have even been required to use it.

The fact is, there are major problems with the E-Verify System. It is a hugely flawed system and will have a severe effect on both naturalized U.S. citizens, as well as those who are native born. Millions of employees could mistakenly fall into legal limbo.

Independent analysis of existing government databases have found unacceptably high error rates. Currently those voluntarily using E-Verify have experienced near double-digit error rates. Forcing more than 7 million employers to verify the legal status of more than 160 million current employees, as well as the millions of future hires, means that potentially, as many as 17 million citizens and legal US residents will be mistakenly found "ineligible" to work.

The fact is, the Social Security Administration (SSA) never purges a Social Security number once it's assigned. The Numident database (which E-Verify uses) currently contains 435 million records; more than 100 million more than the nation's total population, legal or otherwise. In December 2006, the SSA Inspector General reported approximately 18 million of these records are not accurate. Yet, DHS wants E-Verify made mandatory for the entire American work force.

"As a matter of simple math," says Jim Harper at the CATO Institute, "that means that if E-Verify were to go national, on the first day 1 in 25 legal hires would be bounced out of the system and asked to go down to the Social Security office and straighten out the problem."

Imagine the problems faced by honest, law abiding Americans who are thrown out of the system. In most cases, these are not well-to-do executives who can simply take the afternoon off to fix the problem. They are lower level workers who depend on every dime they earn to pay the rent and feed the kids. Simply taking a day off to go down to the local Social Security office isn't an easy thing.

>From the moment they are found to be a "tentative non-confirmed" they have eight days to contest the claim and to prove they are legal. A day off work is required because the Social Security office is only open from 8:30am to 5:00pm. If the employer fails to make it to the office in the 8 days, the employer is required by threat of fine and criminal charges to fire the employee.

Moreover, as the E-Verify system is forced on all employers and the large numbers of employees (as reported above) are thrown from the system, there will be a massive run on the Social Security office. The SS Administration is simply not equipped to handle such a massive influx of cases. The infrastructure to handle it is not in place.

As anyone who tried to get a passport last year knows, when the government makes significant, mandatory changes in a system, typically government inefficiency rules. New rules concerning passports forced Americans to flood passport offices, but the offices weren't prepared to receive and process the massive number of applicants. The E-Verify System would force much larger numbers into unprepared Social Security offices.

If it's all been a mistake, the burden of proof is on the employee to prove who they are and that they are legal citizens or residents eligible to continue working. These law-abiding American citizens enter the Social Security Office as criminal suspects with the potential of being deported. Contrary to American law, they are guilty until proven innocent. Incredibly, there is no appeals process in place to challenge the findings of E-Verify.